Township of Bethlehem, NJ Article VII Planning Board

[Amended 12-3-1998 by Ord. No. 255-20-98]

§ 102-40 through § 102-42. (Reserved).

§ 102-43 Establishment and organization of Planning Board.

A. A Planning Board is hereby created consisting of nine regular and four alternate members of the following four classes:

[Amended 7-2-2009 by Ord. No. 255.53.2009]

(1) Class I: the Mayor or the Mayor's designee in the absence of the Mayor.

(2) Class II: one of the officials of the township other than a member of the governing body, to be appointed by the Mayor, provided that if there is an Environmental Commission, the member of the Environmental Commission who is also a member of the Planning Board shall be deemed to be the Class II Planning Board member for purposes of this chapter in the event that there is among the Class IV or alternate members of the Planning Board a member of the Board of Education.

(3) Class III: A member of the Township Committee to be appointed by the Township Committee.

(4) Class IV regular members: seven other citizens of the municipality to be appointed by the Mayor. The members of Class IV shall hold no other municipal office, except that one member may be a member of the Board of Education. A member of the Environmental Commission who is also a member of the Planning Board as required by N.J.S.A. 40:56A-1 et seq. shall be a Class IV Planning Board member unless there is among the Class IV regular or alternate members of the Planning Board a member of the Board of Education, in which case the member of the Environmental Commission shall be deemed to be the Class II member of the Planning Board.

(5) Class IV alternate members: four other citizens of the municipality to be appointed by the Mayor. Alternate members shall meet the qualifications of Class IV regular members and shall be designated by the Mayor at the time of their appointment as "Alternate No. 1," "Alternate No. 2," "Alternate No. 3" and "Alternate No. 4."

B. The term of the member comprising Class I shall correspond with the Mayor's official tenure or, if the member is the Mayor's designee in the absence of the Mayor, the designee shall serve at the pleasure of the Mayor during the Mayor's official tenure. The terms of the members comprising Class II and Class III shall be for one-year or terminate at the completion of their respective terms of office, whichever occurs first, except for a Class II member who is also a member of the Environmental Commission. The term of a Class II (or Class IV) member who is also a member of the Environmental Commission shall be for a term of three years or terminate at the completion of his term as a member of the Environmental Commission, whichever occurs first.

C. All present Class IV members of the Planning Board shall continue in office until the completion of the terms for which they were appointed. The term of a Class IV member who is also a member of the Board of Education shall terminate whenever he is no longer a member of such other body or at the completion of his or her Class IV term, whichever comes first.

D. The terms of Class IV regular members first appointed pursuant to this chapter shall be so determined that, to the greatest practicable extent, the expiration of such term shall be evenly distributed over the first four years after their appointment, provided that the initial term shall not exceed four years. Thereafter, the term of each Class IV regular member shall be four years. All terms shall run from January 1 of the year in which the appointment is made.

E. The terms of the Class IV alternate members shall be two years, except that the terms of the alternate members shall be such that the term of not more than one alternate member shall expire any one year; provided, however, that in no instance shall the terms of the alternate members first appointed exceed two years. All terms shall run from January 1 of the year in which the appointment is made.

F. Alternate members may participate in discussions of the proceedings but may not vote except in the absence or disqualification of a regular member of any class. A vote shall not be delayed in order that a regular member may vote instead of an alternate member. In the event that a choice must be made as to which alternate member is to vote, Alternate No. 1 shall vote. No alternate member shall be permitted to act on any matter in which he/she has, either directly or indirectly, any personal or financial interest.

G. If a vacancy of any class shall occur otherwise than by expiration of the Planning Board term, it shall be filled by appointment as above provided for the unexpired term. Any member other than a Class I member may be removed by the governing body for cause but only after public hearing, if requested, and other requested procedural due process protection. No member of the Planning Board shall be permitted to act on any matter in which he/she has, either directly or indirectly, any personal or financial interest.

H. The Planning Board shall organize annually by selecting from among its Class IV regular members a Chairman and a Vice Chairman. The Board shall also select a Secretary who may or may not be a member of the Board or an employee of the Township.

I. The governing body, after giving due consideration to budget requests that may be submitted by the Planning Board, shall make provisions in its budget and appropriate funds for the expenses of the Planning Board.

J. The Office of Planning Board Attorney is hereby created. The Planning Board may appoint to such office and fix compensation or rate of compensation of an attorney at law of New Jersey other than the Township Attorney.

K. The Planning Board may also employ or contract for and fix the compensation of such experts and other staff and services as it may deem necessary. The Board, however, shall not authorize expenditures which exceed, exclusive of gifts or grants, the amount appropriated by the governing body for its use.

§ 102-44 Powers and jurisdiction of Planning Board.

The Planning Board shall have the powers listed below in addition to other powers established by law:

A. To make, adopt and from time to time amend a Master Plan for the physical development of the township, including any areas outside its boundaries which, in the Board's judgment, bear essential relationship to the planning of the Township.

B. To administer the subdivision and site plan review provisions of the Land Development Ordinance in accordance with the applicable provisions of said ordinance.

C. To hear and decide applications for conditional uses in accordance with the applicable provisions of this chapter.

D. To participate in the preparation and review of programs or plans required by state or federal law or regulation.

E. To assemble data on a continuing basis as part of a continuous planning process.

F. Annually, at the request of the Township Committee, to prepare a program of municipal capital improvements projects projected over a term of six years and to recommend the same to the Township Committee.

G. To consider and report to the Township Committee within 35 days after referral as to any proposed development regulation submitted to it and also to pass upon other matters specifically referred to the Planning Board by the Township Committee.[1]

[1] Editor's Note: Former Subsections H through P, regarding exceptions, variances and other provisions, which immediately followed this subsection, were repealed 2-21-2002 by Ord. No. 255-33-2002.

H. The powers previously exercised by the Zoning Board of Adjustment pursuant to § 102-44.1 are now exercised by the Planning Board as provided by law; however, as provided by N.J.S.A. 40:55D-25(c)(1), the Class I member and the Class III member shall not participate in any application which requires relief pursuant to N.J.S.A. 40:55-70(d).

[Added 7-2-2009 by Ord. No. 255.53.2009]

§ 102-44.1 Zoning Board of Adjustment.

[Added 2-21-2002 by Ord. No. 255-33-2002; amended 7-2-2009 by Ord. No. 255.53.2009]

Pursuant to Ordinance No. 255.53.2009 effective January 1, 2010, the Zoning Board of Adjustment was merged into the Planning Board as is permitted by the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.), specifically, N.J.S.A. 40:55D-25(c). See § 102-44H.

§ 102-45 Provisions applicable to Planning Board or Board of Adjustment.

[Amended 2-21-2002 by Ord. No. 255-33-2002]

A. Conflicts of interest. No regular or alternate member of the Planning Board or Board of Adjustment shall act on any matter in which he has, either directly or indirectly, any personal or financial interest. Whenever any such member shall disqualify himself from acting on a particular matter, he shall not continue to sit with the Board on the hearing of such matter nor participate in any discussion by the Board or any decision relating thereto.

B. Meetings.

(1) Meetings of the Planning Board or Board of Adjustment shall be scheduled no less than once a month, and any meeting so scheduled shall be held as scheduled unless cancelled for lack of applications for development to process.

(2) Special meetings may be provided for at the call of the Chairman or on the request of any two Board members, which meetings shall be held on notice to its members and the public in accordance with all applicable legal requirements.

(3) No action shall be taken at any meeting without a quorum being present, said quorum to be the majority of the full authorized membership of the Board.

(4) All actions shall be taken by majority vote of the members of the Board present at the meeting except as otherwise required by a provision of N.J.S.A. 40:55D-1 et seq. A member of the Board who was absent for one or more of the meetings at which a hearing was held shall be eligible to vote on a matter upon which the hearing was conducted, notwithstanding his absence from one or more of the meetings; provided, however, that such Board member has available to him the transcript or recording of all of the hearings from which he was absent and certifies in writing to the Board that he has read such transcript or listened to such recording.

(5) All regular meetings and all special meetings shall be open to the public, except as provided in the Open Public Meetings Act, P.L. 1975, c. 231. Notice of all such meetings shall be given in accordance with the requirements of the Open Public Meetings Act, P.L. 1975, c. 231.[1]

[1] Editor's Note: See N.J.S.A. 10:4-6 et seq.

C. Public hearings.

(1) The Planning Board or Board of Adjustment shall hold a hearing on each application for development. The Board shall make rules governing such hearings.

(2) Any maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least 10 days before the date of the hearing during normal business hours in the office of the administrative officer. The applicant may produce any documents, records or testimony at the hearing to substantiate or clarify or supplement the previously filed maps and documents.

(3) The officer presiding at the hearings, or such person as he may designate, shall have the power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties, and the provisions of the County and Municipal Investigations Law, P.L. 1953, c. 38 (N.J.S.A. 2A:67A-1 et seq.), shall apply.

(4) The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer or such other person as he may designate, and the right of cross-examination shall be permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and reasonable limitations as to time and number of witnesses.

D. Public notice of a hearing.

(1) Public notice of a hearing shall be given for the following applications for development:

(a) Any request for a variance.

(b) Any request for conditional use approval.

(c) Any request for issuance of a permit to build within the bed of a mapped street or public drainageway or on a lot not abutting a street.

(d) Any request for site plan and/or subdivision approval, if and only if said site plan and/or subdivision involves one or more of the aforesaid elements.

(e) Any request for preliminary approval of a major subdivision and/or preliminary major site plan.

(f) Any request for approval of a planned development.

(2) The Clerk of the Planning Board or Board of Adjustment shall notify the applicant at least two weeks prior to the public hearing at which the application will be discussed. Notice of a hearing requiring public notice shall be given by the applicant at least 10 days prior to the date of the hearing in the following manner:

(a) By publication in an official newspaper of the Township, if there is one, or in a newspaper of general circulation in the Township in the absence of an official newspaper.

(b) By notification by personal service or certified mail to the following. An affidavit of proof of the giving of the required notice shall be filed by the applicant with the municipal agency at or prior to the hearing. It is not required that a return receipt is obtained; notice is deemed complete upon mailing (N.J.S.A. 40:55D-14).

[1] To all owners of real property as shown on the current tax duplicate, located in the state and within 200 feet in all directions of the property which is the subject of the hearing, provided that this requirement shall be deemed satisfied by notice to the condominium association, in the case of any unit owner whose unit has a unit above or below it, or horizontal property regime, in the case of any co-owner whose apartment has an apartment above or below it.

[a] Notice to a partnership owner may be made by service upon any partner.

[b] Notice to a corporate owner may be made by service upon its President, a vice president, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation.

[c] Notice to a condominium association, horizontal property regime, community trust or homeowners' association, because of its ownership of common elements or areas located within 200 feet of the property which is the subject of the hearing, may be made in the same manner as to a corporation without further notice to unit owners, co-owners or homeowners on account of such common elements or areas.

[2] To the Clerk of any adjoining municipality or municipalities when the property involved is located within 200 feet of said adjoining municipality or municipalities.

[3] To the Hunterdon County Planning Board or Board of Adjustment when the application for development involves property adjacent to an existing county road or proposed road as shown on the County Official Map or County Master Plan, adjoining other county land or situated within 200 feet of a municipality boundary.

[4] To the Commissioner of Transportation of the State of New Jersey when the property abuts a state highway.

[5] To the Director of the Planning Commission when the hearing involves an application for the development of property which exceeds 150 acres or 500 dwelling units, in which case the notice shall include a copy of any maps or documents required to be filed with the Township.

(3) Upon the written request of an applicant, the administrative officer shall, within seven days, make and certify a list from current tax duplicates of names and addresses of owners within the Township to whom the applicant is required to give notice. The applicant shall be charged $0.25 per name or $10, whichever is greater, for said list and shall be entitled to rely upon the information contained in such list, and failure to give notice to any lot owner not on the list shall not invalidate any hearing or proceeding. Additionally, the applicant shall be responsible for giving proper notice to all property owners pursuant to Subsection D(2)(b) above who do not reside within the Township.

(4) The notice shall state the date, time and place of the hearing and the nature of the matters to be discussed and an identification of the property proposed for development by street address, if any, and by reference to lot and block numbers as shown on the current tax duplicate in the Township Tax Assessor's office and the location and times at which any maps or documents for which approval is sought are available for inspection.

E. Records.

(1) Minutes of every regular or special meeting shall be kept and shall include the names and addresses of the persons appearing and addressing the Planning Board or Board of Adjustment and of any persons appearing by attorney, the action taken by the Planning Board or Board of Adjustment, the findings, if any, made by it and the reasons therefor. The minutes shall thereafter be made available, after approval by the Board, for public inspection during the normal business hours at the office of the administrative officer. Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceedings concerning the subject matter of such minutes. Such interested party shall be charged a reasonable fee for the reproduction of the minutes, as indicated in § 102-53 of this chapter.

(2) A verbatim recording shall be made of every hearing on an application for development submitted to the Township in accordance with Article VIII of this chapter. The recording of the proceedings shall be made either by stenographic, mechanical or electrical means. The municipality shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his expense, provided that the charge for a transcript shall not exceed the maximum amount permitted in N.J.S.A. 2A:11-15[2] and as indicated in § 102-53 of this chapter. Each transcript shall be certified in writing by the transcriber to be accurate.

[2] Editor's Note: N.J.S.A. 2A:11-15 was repealed by P.L. 1991, c. 119. See now N.J.S.A. 40:55D-10.

F. Decisions.

(1) Each decision on any application for development shall be reduced to writing by the Board and shall include findings of facts and conclusions based thereon.

(2) The Board shall provide the findings and conclusions through:

(a) A resolution adopted at a meeting held within the time period provided in this chapter for action by the Board on the application for development; or

(b) A memorializing resolution adopted at a meeting held no later than 45 days after the date of the meeting at which the Board voted to grant or deny approval. Only the members of the Board who voted for the action taken may vote on the memorializing resolution, and the vote of a majority of such members present at the meeting at which the resolution is presented for adoption shall be sufficient to adopt the resolution. An action pursuant to N.J.S.A. 40:55D-9 (resulting from the failure of a motion to approve an application) shall be memorialized by resolution as provided above, with those members voting against the motion for approval being the members eligible to vote on the memorializing resolution.

(3) The vote on any memorializing resolution shall be deemed to be a memorialization of the action of the Board and not to be an action of the Board; however, the date of the adoption of the resolution shall constitute the date of the decision for purposes of the mailings, filings and publications required in § 102-47 of this chapter.

(4) If the Board fails to adopt a resolution or memorializing resolution as hereinabove specified, any interested party may apply to the Superior Court in a summary manner for an order compelling the Board to reduce its findings and conclusions to writing within a stated time, and the cost of the application, including attorneys fees, shall be assessed against the municipality.

§ 102-46 Appeals.

A. Any interested party may appeal to the Township Committee any final decision of the Planning Board approving an application for a use variance pursuant to N.J.S.A. 40:55D-70d and § 102-41D of this chapter. Notwithstanding the aforesaid right of appeal to the Township Committee, any party has the right to obtain a review of such Planning Board decision by any court of competent jurisdiction according to law.

B. Any appeal to the Township Committee shall be made within 10 days of the date of publication of such final decision pursuant to § 102-47 of this chapter. The appeal to the Township Committee shall be made by serving the Township Clerk in person or by certified mail with a notice of appeal specifying the grounds thereof and the name and address of the appellant and the name and address of his attorney, if represented.

C. The appellant shall either within five days of serving notice of the appeal, arrange for a transcript for use by the Township Committee and pay a deposit of $50 or the estimated cost for such transcription, whichever is less, provided that the charge by the township to the applicant for the transcript shall not exceed the maximum permitted in N.J.S.A. 2A:11-15;[1] or within 35 days of serving notice of the appeal, submit a transcript to the Township Clerk for use by the Township Committee. Should the appellant neither arrange for or submit a transcript as provided hereinabove, the Township Committee may dismiss the appeal for failure to prosecute. All transcripts shall be certified in writing by the transcriber to be accurate.

[1] Editor's Note: N.J.S.A. 2A:11-15 was repealed by P.L. 1991, c. 119. See now N.J.S.A. 40:55D-10.

D. Notice of the meeting to review the record below shall be given by the Township Committee by personal service or certified mail to the appellant, to those entitled to notice of a decision pursuant to § 102-47 of this chapter and to the Planning Board at least 10 days prior to the date of the meeting. The appeal shall be decided by the Township Committee only upon the record established by the Planning Board. The parties may submit oral and written arguments on the record at the Township Committee meeting, and the Township Committee shall provide and pay for verbatim recording and transcripts of such meeting.

E. The Township Committee shall conclude a review of the record below not later than 95 days from the publication of the notice of the subject decision of the Planning Board, unless the appellant consents in writing to an extension of such time period. Failure of the Township Committee to hold a hearing and conclude a review of the record below and to render a decision within such specified period without such written consent of the appellant shall constitute a decision affirming the action of the Planning Board.

F. The Township Committee may reverse, remand or affirm, with or without conditions, the final decision of the Planning Board being appealed. The affirmative vote of two members of the Township Committee shall be necessary to reverse, remand or impose or remove conditions upon the aforesaid final decision. In the event that an affirmative vote of two members of the Township Committee is not obtained, the aforesaid final decision shall be deemed affirmed without change.

G. An appeal to the Township Committee shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made unless the Planning Board certifies to the Township Committee, after the notice of appeal has been filed with the Board, that by reasons of facts stated in the certificate a stay would, in its opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed other than by an order of the Superior Court on application upon notice to the Planning Board and on good cause shown.

§ 102-47 Notice of decisions.

Any decision of the Planning Board, when acting upon an application for development, and any decision of the Township Committee, when acting upon an appeal, shall be given notice in the following manner:

A. A copy of the decision shall be mailed by the appropriate township authority within 10 days of the date of decision to the applicant or appellant, or if represented, then to his attorney, without separate charge. A copy of the decision shall also be mailed within 10 days to any interested party who has requested it and who has paid the fee prescribed by the township authority for such service.

B. A brief notice of every final decision shall be published in the official newspaper of the township. Such publications shall be arranged and payed for by the applicant. The notice shall be sent to an official newspaper for publication within 10 days of the date of any such decision.

C. A copy of the decision shall also be filed in the office of the administrative officer, who shall make a copy of such filed decision available to any interested party upon payment of a fee calculated in the same manner as those established for copies of other public documents in the township, as indicated in § 102-53 of this chapter.